RIGHTS-ARGENTINA: Spanish Judge Justifies Charges of Genocide

By Tito Drago Reprint | | Print |

Tito Drago

MADRID, Nov 20 1997 (IPS) - Spanish Judge Baltasar Garzon established the legal foundations for accusing Argentine military officers of genocide in a trial on the disappearance of Spanish citizens during the Southern Cone country’s 1976-83 dictatorship.

The judicial decree opens new prospects for two trials in Spain, one on charges of genocide and torture of Spanish citizens in Argentina and the other for the same crimes in Chile, under the dictatorship of General Augusto Pinochet (1973-90).

The Argentine and Chilean governments have refused to collaborate with judges Garzon and Manuel Garcia Castellon, arguing that the defendants were already tried, pardoned or amnestied and cannot be re-tried. Several Spanish prosecutors agree with that position.

However, the situation is different if the defendants are accused of genocide and terrorism, due to the existence of legal precedents as well as international treaties that indicate that responsibility for such crimes does not lapse over time, and that the perpetrators can be pursued worldwide and across borders.

According to the Royal Spanish Academy of Language dictionary, genocide is “the systematic extermination or elimination of a social group on the basis of race, religion or politics.”

But the popular meaning, which is used by some legal sectors, interprets genocide as the extermination of a people for religious or ethnic reasons.

In Garzon’s Oct. 10 decree, to which IPS had access Thursday, the judge lays down the legal foundations for the charges of genocide, and clearly defines that crime.

Garzon points out that while Spain’s penal code and international penal law interpret genocide as “actions towards the total or partial destruction of a national group,” that definition was based on events like the genocide of the Jews in Nazi Germany.

But sectors, groups or associations that form part of a nation are also encompassed by the definition of national groups, he added.

Genocide refers to the systematic and violent elimination “by pre-meditated and pre-ordered decisions based on the aim of ideological purification, designed by those who hold the absolute power and the repressive structure of the state to carry it out.”

Besides the physical elimination, there are efforts “to impose ideological indoctrination on future generations, including the children of those who were abducted and killed.”

Garzon says that when the state abducts and kills thousands of people, that constitutes an effort to destroy the citizens as a people – a people who share “a common personal tradition, culture and history.”

If legislators have not specifically referred to that circumstance, that is not due to a search for impunity, but rather because “its inclusion is obvious,” Garzon adds.

Joan Garces, a Spanish law professor, says the 1948 convention on genocide as well as “Nuremberg Law” – which takes its name from trials of Nazi officers held in that German city – can be applied in both trials.

He points out that the International Court at the Hague stated in a 1993 resolution that “all states party to the convention have assumed the obligation of preventing and punishing the crime of genocide,” while Nuremberg Law has been recognised by all United Nations member states.

The lawyers for the relations of the Spanish victims of the two Southern Cone dictatorships stress that Argentine officers like captain Alfredo Astiz had been found guilty by French courts, while both Argentine and Chilean officers had been sentenced by U.S. courts.